Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.
Click HERE to read the series.
“I’m president, I’m not king. … There’s a limit to the discretion that I can show because I’m obliged to execute the law. I can’t just make the laws up myself.”
That was former President Barack Obama’s correct response in October 2010 when he was being pressed by immigration activist groups to enact immigration reform without the benefit of congressional involvement. Just two years later, however, Mr. Obama had slightly altered his view of the power of the executive branch role in the lawmaking process. “I’ve got a pen, and I’ve got a phone,” he said in describing his new approach to Congress.
Mr. Obama eventually would use his “pen and phone” strategy to do exactly what the immigration advocates originally wanted him to do: circumvent Congress to implement the Deferred Action for Childhood Arrivals policy via executive order.
Unfortunately, in the United States, such circumvention has now become so widely accepted that Congress seems to have accepted its fate as an inferior branch of the federal government.
This is, of course, contrary to the concepts of co-equal branches and separation of powers and is, more importantly, fundamentally unwise.
Enduring public policies require the consent of the governed, which means, as a practical matter, the consent of their representatives. Policies that do not receive this consent through the legislative process are subject to change with each new presidential administration.
The problem seems to be getting worse. Presidents have adopted expansive views of their executive powers. Franklin D. Roosevelt issued 3,721 executive orders during more than 12 years in the White House, an average of 307 per year. That annual average was more than the total executive orders produced by our first 17 presidents combined.
Much of the reason the presidency has seized so much power over the past century is that Congress has failed to contest its encroachments. There are reasons for this lack of resistance from Congress — political convenience, pressure from party leadership, over-reliance on agencies and courts to address complexities, etc. But the result is a narrow, top-down, pathological approach to policy making. Legislation is often crafted by a small group of members in leadership in coordination with the executive office of the president, and rank-and-file members are frequently cut out of the entire process.
It is difficult to claim that the legislative branch retains its fundamental authority to make laws when most legislators have no input into legislation or even time or ability to read and understand legislation before voting on it.
A recent and timely example of the importance of retention of congressional powers occurred last year, when the Biden administration inexplicably waived sanctions on a Kremlin-controlled company responsible for the Nord Stream 2 pipeline. The waiver effectively greenlit the project and allowed Russia to expand its economic and geopolitical power by becoming even more of a major exporter of energy to Europe.
That decision drew criticism from both Democrats and Republicans, and it even sparked a bipartisan effort to include language in the National Defense Authorization Act for fiscal 2022, requiring mandatory sanctions on the companies involved in Nord Stream 2.
Unfortunately, the language was stripped from the final version of the bill by Democratic Party leadership in Congress at the urging of President Biden.
Another timely example is the back-and-forth saga of the Keystone XL pipeline. In 2015, Congress passed legislation to approve construction of the pipeline stretching from western Canada to Nebraska and create tens of thousands of good-paying American jobs. Mr. Obama vetoed the bill, and despite bipartisan support, Congress failed to override the veto.
Two years later, the Trump administration granted the project’s permit after the president signed an executive order to expedite the approval process. In one of his first acts upon taking office, Mr. Biden signed another executive order revoking the project’s permit, halting construction, dismaying our Canadian allies and sending thousands of Americans to the unemployment line.
These are the kind of unstable, ephemeral results that are produced when policy making is largely conducted by pen and phone from the Oval Office.
Congress needs to reassert its prerogatives and reclaim its rightful power as the federal government’s only lawmaking body and the source of all legislative power. To do so, individual lawmakers need to stop ceding authority to their leadership. They need to stop lobbying the president for executive orders. They need to stop leaving difficult issues in the hands of the courts.
Many members of Congress are content to publicly slam presidential overreach, but take little action to try and change it. Television hits, social media posts and messaging bills only go so far. Congress needs a renewed bipartisan commitment, from the House speaker all the way down to freshman members, to take back its legislative authority and put real meaningful checks on the executive branch.
The very first sentence of Article I of the Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” It is critical that members of Congress on both sides of the aisle always remember that, no matter who occupies the Oval Office.
• Rep. Lee Zeldin is a Republican representing New York’s 1st Congressional District and serves on the House Financial Services and Foreign Affairs committees. He is running for governor.